Posted on Categories employment contract, Social Insurance

Changes to social security regulations may reduce abuse of sick leave by employees

The beginning of 2022 will bring significant social security changes for both insured (employees) and payers (employers). These changes relate to the amendment of social security regulations, including the Act on cash benefits from social insurance in case of sickness and maternity (the Act of 24 June 2021 amending the Act on the social insurance system and some other acts), some of the provisions of which have already been in force since 18 September 2021

Change in calculating benefit periods

A particularly significant change concerns the method for calculating benefit periods and the right to sickness benefit. As of 1 January 2022, a single benefit period will cover all periods of incapacity to work if the interval between them is no longer than 60 days. It is important that it will not matter whether a subsequent incapacity to work is caused by the same illness or one different to the previous case. This change will certainly shorten the period during which sick pay is collected, in some cases and indeed significantly. The change is beneficial for employers. It might significantly reduce sickness absences among employees

Current rules for calculating benefit periods

The general rule, which will not change, is that sickness benefit is due for the entire period of incapacity to work due to, inter alia, illness, but no longer than for 182 days, and if the incapacity to work is due to tuberculosis or occurs during pregnancy, no longer than for 270 days.

Currently, periods of previous incapacity to work due to the same disease are included in one benefit period, if the interval between termination of the previous incapacity to work and occurrence of a new incapacity to work does not exceed 60 days. This means that the following are treated as one benefit period:

  • period of uninterrupted incapacity to work (maximum 182 or 270 days), regardless of the type of illness;
  • period of intermittent incapacity to work due to the same disease, where there has been an interval of less than 60 days.

On the other hand, if a subsequent incapacity to work was caused by a different illness than the previous one, one day’s break between incapacities was sufficient for a new benefit period to open. This opportunity was quite often used by employees to extend their incapacity to work. An amendment to the legislation will change this rule.

New method for calculating benefit periods from 1 January 2022

From 1 January 2022, it will no longer matter whether a subsequent incapacity is caused by the same or a different illness. To determine the benefit period, it will only be important that the break between the incapacities is no longer than 60 days. Therefore, if an employee falls ill after the break with a different illness than previously (within 60 days from the end of the previous incapacity), the period of incapacity after the break will be included in the same benefit period (it will not lead to the opening of a new benefit period, as now). The consequence of these changes will be to shorten the period in which insured persons receive sickness benefit.

The legislator has provided for exceptions to the above rule for pregnant women. The benefit period of the future mother will not include periods of incapacity to work which ensued before a break of no more than 60 days, if incapacity to work occurred during pregnancy after the break. In this case, a new benefit period will be opened, which may amount to a maximum of 270 days.

Reduction of the right to sickness benefit after termination of employment

As of the new year, the period for collecting sickness benefit after employment termination (after the termination of insurance) will also change. Currently, the benefit period of 182 days applies both during and after the termination of insurance.  After the change, the period for drawing sickness benefit after termination of employment will be reduced to a maximum of 91 days. This means that if, for example, the employment termination notice period expires on 31 October and the employee falls ill on 3 November, he will be entitled to sickness benefit for a maximum of 91 days (instead of 182 days as at present). The above rule will not apply to incapacity resulting from:

  1. undergoing necessary medical examinations of cell, tissue and organ donor candidates and talking cells, tissue and organs,
  2. incidence of tuberculosis, and
  3. pregnancy.   

The 91-day benefit period, irrespective of the type of sickness, will not include incapacity to work whilst insured. This means that if an employee was ill before the termination of his employment contract and used up 182 days during his employment, and falls ill again after his employment terminates, he will still be entitled to the benefit for another 91 days after his employment ceases.     

Changes also important for employers

According to the justification to the draft amending act, the proposed changes are aimed, among other things, at limiting abuses related to the use of sick leave, and thus the unjustified drawing of benefits (they are supposed to reduce the amount of benefits paid out by the Social Insurance Institution). The problem of excessive employee sick leave also affects a large proportion of employers. From the employer’s point of view, the new solutions, and in particular the change in the method for calculating the benefit period, are therefore of significant importance. The change will shorten the period over which an employee receives sick pay. It appears that this should, therefore, curb the numerous pathologies connected with the abuse of sick leave by employees.  

Katarzyna Wilczyk